The opinion of the court was delivered by: JOHN PADOVA, District Judge
Plaintiffs, John and Gail Sutton, have brought this action on their
own behalf, and on behalf of their minor daughter, Danielle Sutton,
pursuant to 42 U.S.C. § 1983, 29 U.S.C. § 794,
42 U.S.C. § 12101 et seq., and state common law against the West Chester
Area School District (the "School District"), Dr. Lee McFadden, Dr. William
Duffy, Dr. Alan Elko, and Karen Smith. Plaintiffs allege that Defendants'
attempt to enter into a Service Agreement pursuant to Section 504 of the
Rehabilitation Act ("Section 504") with Plaintiffs, in order to
accommodate Plaintiffs' desire that their minor daughter not be exposed
to chemical pesticides used by the School District at its schools, was an
abuse of process and violated their substantive due process rights under
the Fourteenth Amendment and their First Amendment rights to free speech.
Before the Court is Defendants' Motion for Summary Judgment. For the
reasons which follow, Defendants' Motion is granted.
Plaintiffs John and Gail Sutton, and their minor daughter Danielle,
lived in the School District between November 1998 and January 2002. (Danielle Sutton Dep. at 16, Gall Sutton Dep. at 43.)
All three of the Suttons suffer from multiple chemical sensitivities and
Danielle is sensitive to pesticides. (Pls.' Mem. at 2, Gail Sutton Dep.
at 17.) In February of 2000, the School District announced a plan to
begin spraying pesticides on the playing fields at School District
schools in the spring of that year. (Danielle Sutton Dep. at 42, Gail
Sutton Dep. at 19-21, Pls.' Ex. A.) The School Board voted to approve the
spraying plan during a March 2000 School Board meeting. (Danielle Sutton
Dep. at 40.) John, Gail and Danielle Sutton protested the use of
pesticides at that School Board meeting by standing in front of the
building where the meeting took place with signs protesting the use of
pesticides. (Id.) They also gathered signatures on petitions in
opposition to the School District's plan to spray pesticides. (Danielle
Sutton Dep. at 42, Pls.' Ex. B.) The School Board approved the spraying
plan and the School District began to spray in the spring of 2000, while
Danielle Sutton was in the eighth grade. (Gail Sutton Dep. at 21.) Due to
Danielle's sensitivity to pesticides, the Suttons asked her gym teacher
to keep her inside if there was spraying. (Gail Sutton Dep. at 22.)
Danielle Sutton was assigned to start ninth grade at East High School
beginning in the fall of 2000. (Gail Sutton Dep. at 24.) East High School
is located in a rural area across the street from a working farm. During
the summer of 2000, prior to Danielle's entering ninth grade, the Suttons
asked the School District for a Section 504 Service Agreement to allow her to fulfill her gym
requirement away from the school. (Gail Sutton Dep. at 25.) They also
asked that the school not be sprayed with pesticides and that Danielle be
allowed to transfer to B. Reed Henderson ("Henderson") High School, which
is located in a more urban area. (Gail Sutton Dep. at 25-26.) On August
15, 2000, Dr. William Duffy, the School District's Assistant Director of
Pupil Services and Special Education, sent a letter to the Suttons asking
that they provide a medical evaluation and diagnosis for Danielle for use
in determining her eligibility for a Section 504 Service Agreement.
(Defs.' Ex. F at S-14.) Danielle's doctor, Marc Cotler, M.D., sent a
letter to the School District on August 23, 2000, stating that Danielle
has a "very strong history of adverse reactions to numerous environmental
chemicals (cleaning agents, etc.) and pesticides. These reactions have
ranged from migraine headaches to sinusitis to airway obstruction."
(Defs.' Ex. F at S-16.) Dr. Cotler strongly recommended that Danielle:
not have gym on lawns that
have been sprayed with pesticides nor
to be at school on days where the farm across
the street has freshly applied pesticides to
their fields. It is my medical opinion that many
of Danielle's symptoms and signs of multiple
chemical sensitivity are precipitated by agents
in the sprays and antigens that are present in
aerosol sprays and odors. Although many people
do not have problems with chemicals in
everyday exposure, such is not the
case with Danielle, and our attention to her
special needs should allow her to participate in
school and school activities. (Defs.' Ex. F at S-16, emphasis in original.)
On August 22, 2000, John Sutton wrote a letter to the Principal of East
High School, Dr. Lee McFadden, asking to be notified of any and all use
of pesticides, herbicides, insecticides, and fungicides used at the
school. (Defs.' Ex. F at S-15.) On August 25, 2000, John Sutton sent a
letter to Dr. McFadden demanding certain accommodations because of
Danielle's multiple chemical sensitivity:
Our daughter is not permitted to go out on the
lawn/fields for gym, picnics or any activity
because of the pesticides. (Other than an
emergency reason for being outside) She can sit in
the library or in some classroom but she is not
allowed on those fields/lawn. Call it 504 or
excused from gym or whatever you call it.
Our daughter can take indoor gym if you use a ball
not used outdoors, if there is no shallack [sic]
odor noticeable to us and if substantial time has
elapsed since the last pesticiding [sic] on the
fields so that there is no "tracking" in of
Multiple Chemical Sensitivity is a disability
OCR can verify this.
So are allergies. So is hypersensitivity to
pesticides which is MCS.
We wanted to find out if our daughter was in any
classroom that had been termited [sic]. (and when
it was termited [sic])
We wanted our daughter to be able to have a safe
bus stops [sic] the same stop she had last year;
for safety reasons and for chemical sensitivity
Will you or will you not do a 504 service
agreement or an independent education program
agreement and/or independent contract? We ask that the district stop using pesticides on
fields. We have filed with OCR regarding this
matter. (of the district using pesticides on the
fields) Rather than belabor the issue, we will
take the reimbursement of summer school issue to
There is a significant half life for pesticides.
They do not just "disappear". They persist in the
soil for some time.
Danielle is not allowed to sit on the gym floor.
She is not allowed to wear pinnies that we did not
She is not allowed to use exercise machines or
equipment or lift weights.
(Defs.' Ex. F at S-18.)
On August 28, 2000, Karen Smith, the school nurse at East High School,
sent a memo to teachers and administrators at East High School, including
Dr. McFadden, stating that "Danielle has a history of severe adverse
reactions to numerous environmental chemicals and pesticides" and that
she "may NOT go outside for physical education or other
activities in grass covered areas." (Defs.' Ex. F at S-19.) Also on
August 28, 2000, the School District proposed a Section 504 Service
Agreement for Danielle Sutton. The proposed Service Agreement stated that
Danielle has been diagnosed with multiple chemical sensitivity, and has
"a history of adverse reactions to numerous environmental chemicals.
These reactions, according to Dr. Cotler, have ranged from migrane [sic]
headaches to sinusitis to airway obstruction." (Defs.' Ex. F at S-20.)
The proposed Service Agreement further stated that the School District
would provide the following accommodations: (1) Danielle will have access to the school nurse
if any symptoms are manifested and the school
nurse will contact Danielle's parents.
(2) Danielle will not participate in outdoor
physical education activities, instead Danielle
will have adaptive PE. This will consist of
appropriate activities in the Fitness Room.
(3) Danielle will be provided with a chair during
those times when sitting on the gym floor is
(4) During fire drills or emergency evacuations,
Danielle will report to the school nurse who is
located in the parking lot outside the main
entrance of East High School.
(5) The district will notify Mr. and Mrs. Sutton
within 48-72 hours prior to the district spraying
herbicides or pesticides at East High School.
(6) The district is willing to offer Danielle
Sutton placement at B. Reed Henderson High School.
The location of this high school is in an urban
area of West Chester, there are no farms or fields
adjacent to the campus.
(7) The district will provide Danielle with balls
and other equipment that have not been used
(Defs.' Ex. F at S-20.) The proposed Service Agreement also states
that, in the event of an emergency, the school nurse "will contact
Danielle's parents, if symptoms are severe enough the school nurse will
call 911." (Def.'s Ex. F at S-20.)
On September 6, 2000, John Sutton sent a letter to the School District
objecting to the proposed Service Agreement for the following reasons:
the Suttons would not allow Danielle to use exercise equipment because of
a previous injury and wanted to substitute gym class with dance; Danielle
would look like an outcast if she sat in a chair during gym; there was no
guarantee that balls used indoors had no pesticides on them; Danielle
would not be permitted to go into the gym unless the school could
guarantee that no pesticide residues had been tracked in to the gym; the
Suttons wanted Danielle's bus stop to be moved; and the Suttons would not
agree to allow the school nurse to call 911 in the event of an emergency
because they do not use the local hospital. (Defs.' Ex. F at S-26.) In
response, the School District proposed two modified Service Agreements,
one for East High School and one which permitted her to transfer to
Henderson High School. The proposed modified Service Agreement for
Henderson High School stated that the School District would provide the
following accommodations and emergency procedures:
1. The WSACD is giving Danielle an exception to
attend B. Reed [sic] High School.
2. Danielle will not participate in outdoor
physical education activities; instead she will
have an adaptive physical education program.
This will consist of appropriate activities in
the Fitness Room. This will include directed
activities using a Nautilus Machine, Treadmill,
Exercycle, stretching exercises and pushups.
These activities will be appropriate for a
student in the ninth grade.
3. Danielle will be provided with balls and other
equipment that has [sic] been prepared for use
inside and has [sic] not been used outside.
4. During emergency evacuations of the building
(e.g. fire drills, etc.), Danielle will report
to the school nurse who is located outside the
west entrance to B. Reed Henderson High School
in the parking lot.
5. The WCASD will notify Danielle's parents within
48 to 72 hours prior to the spraying of
herbicides or pesticides by school district
personnel or district representatives.
The following procedures will be followed in the
event of a medical emergency:
1. Danielle will have access to the school nurse
if any symptoms are manifested.
2. The school nurse will access Danielle and
contact her parents. In addition, the nurse
will follow all established School District
Guideline [sic] regarding emergencies. This
shall include calling 911 and administering
epinephrine through an "epipen."
(Defs.' Ex. F at S-27.) The proposed modified Service Agreement for
East High School is identical, except with respect to emergency
evacuations. (Defs.' Ex. F at S-28.) The East High School Service
Agreement stated that "During emergency evacuations of the building (e.g.
fire drills, etc.), Danielle will report to the school nurse who is
located outside the main entrance in the parking lot." (Defs.' Ex. F at
After receiving the proposed modified Service Agreements, the Suttons
withdrew their request for a Section 504 Service Agreement. They contend
that they withdrew their request because they didn't want to label their
daughter as disabled and because the adaptive physical education provided
in the proposed modified Service Agreements was at odds with the School
District's practice of allowing parents a wide range of physical
activities to choose from. (Gail Sutton Dep. at 26, Pls.' Mem. at 3,
Pls.' Ex. D.) They also disagreed with the provision that the school
nurse would be authorized to inject Danielle with epinephrine. (Pls.'
Mem. at 4, Pis.' Ex. F.) The Suttons claimed that the use of epinephrine would
be medically inappropriate for Danielle and provided the School District
with a report from her doctor, Marc Cotler, M.D., to that effect. (Pls.'
Mem. at 4, Pls.' Ex. G.)
On September 14, 2000, after they withdrew their request for a Section
504 Service Agreement, the Suttons sent a note to Dr. McFadden stating
that "Danielle is not to take gym or go outside on the fields or go to
health/fitness room. Please send her to the library." (Defs.' Ex. F at
S-31.) On October 2, 2000, the Suttons refused to fill out a Student
Emergency Card because they insisted that no medication be given to
Danielle, including emergency medication. (Defs.' Ex. F at S-33.) Gail
Sutton told Karen Smith that she believed that Dr. Duffy was "`practicing
medicine without a license' by putting those emergency measures into the
504 Plan." (Defs.' Ex. F at S-33.) On October 10, 2000, John Sutton sent
a note to Dr. Duffy and Mrs. Payne, then the School District's Section
504 coordinator, stating that:
We have repeatedly told you we do not want your
504 plan because it is inadequate and also
attempts to "practice medicine without a license."
We have a workable more acceptable agreement with
the principal of the high school. It is very
peculiar that at first you refused to accept the
idea of a 504 plan and then you try to force us to
take it when we no longer need or want it.
Pesticides are poisons they are not allergies.
Your medical reference in the plan is, also,
practicing incorrect medicine without a license.
(Defs.' Ex. F at S-34.) Because the Suttons continued to ask for accommodations for Danielle
after they withdrew their request for a Section 504 Service Agreement,
and complained to the Office of Civil Rights that a Section 504 Service
Agreement was not in place, the School District submitted the matter for
an administrative due process hearing. (Defs.' Ex. D at 12.) The hearing
was held on November 20, 2000. (Defs.' Ex. E.) The Suttons objected to
the hearing, but participated in it by cross-examining witnesses called
by the School District. (See Defs.' Ex. E.) In a Decision
issued on December 3, 2000, the Special Education Hearing Officer found
that there was no dispute that Danielle has multiple chemical
sensitivities. (Defs.' Ex. D at 10.) The Hearing Officer also found that
the Section 504 Service Agreement offered by the School District is
appropriate and meets the test of reasonableness. (Defs.' Ex. D at 13.)
The Hearing Officer specifically stated that he did not think that the
school nurse would use an epipen on Danielle "capriciously." (Defs.' Ex.
D at 14.) He also stated that the Service Agreement would give Danielle
the opportunity to attend a different high school that was not surrounded
by fields and does not have a working farm across the street. (Defs.' Ex.
D at 13.) The Suttons continued to object to the implementation of the
proposed Service Agreement, but sought to have Danielle transferred out
of East High School. (Pls.' Mem. at 6, Pls.' Exs. H-L.)
The School District informed the Suttons that the Section 504 Service Agreement would be implemented at East High School on
February 27, 2001, following the expiration of the 60 day period to
appeal the decision of the Hearing Officer. (Pls.' Ex. J.) The Suttons
did not appeal the decision of the Hearing Officer. On March 28, 2001,
the School District denied the Suttons' request to transfer Danielle to
Henderson High School because there was a valid Section 504 Agreement in
place at East High School and because "it would not follow educationally
sound practice to uproot Danielle and have her start anew." (Pls.'
Ex. L.) Dr. Duffy stated in his March 28, 2001 letter to the Suttons that
the 504 team would consider transferring Danielle to Henderson prior to
the 2001-2002 school year. (Pls.' Ex. L.) In April 2001, the Suttons
withdrew Danielle from East High School in order to home school her
because she: "could not transfer to Henderson, the farm was about to
spray toxic pesticides and the school was about to spray toxic pesticides
and the forced 504 was being implemented allowing the nurse to inject
[Danielle] with epinephrine. . . . " (John Sutton Aff. ¶ 11.)
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is
"material" if it might affect the outcome of the case under governing
A party seeking summary judgment always bears the initial
responsibility for informing the district court of the basis for its
motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving
party bears the burden of proof on a particular issue at trial, the
movant's initial Celotex burden can be met simply by "pointing
out to the district court that there is an absence of evidence to support
the non-moving party's case." Id. at 325. After the moving
party has met its initial burden, "the adverse party's response, by
affidavits or otherwise as provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). That is, summary judgment is appropriate if the non-moving party
fails to rebut by making a factual showing "sufficient to establish the
existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477
U.S. at 322. "Speculation, conclusory allegations, and mere denials are
insufficient to raise genuine issues of material fact." Boykins v.
Lucent Technologies, Inc., 78 F. Supp.2d 402, 407 (E.D. Pa. 2000). Indeed, evidence introduced to defeat or support a motion for
summary judgment must be capable of being admissible at trial.
Callahan v. AEV. Inc., 182 F.3d 237, 252 n.11 (3d Cir.
1999)(citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware
Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993)). The Court must view
the evidence presented on the motion in the light most favorable to the
opposing party. Anderson, 477 U.S. at 255.
John and Gail Sutton have asserted causes of action on behalf of
themselves and on behalf of Danielle Sutton, alleging abuse of process
under the Rehabilitation Act and the Americans with Disabilities Act
("ADA"), violation of their civil and fundamental rights, retaliation and
harassment in violation of the First Amendment, intentional infliction of
emotional distress, abuse of power, and conspiracy to violate Danielle's
civil rights in violation of 42 U.S.C. § 1985. All of these causes of
action are based upon the School District's request for a due process
hearing in order to resolve its dispute with the Suttons regarding the
proposed Section 504 Service Agreement, and implementation of the Section
504 Service Agreement after it was approved by the Hearing Officer.
Defendants have moved for summary judgment on all remaining counts of the
Amended Complaint.*fn1 A. Counts I and VI
In Counts I and VI of the Amended Complaint, John and Gall Sutton claim
that the School District willfully abused process, and abused its power
and authority, in violation of Section 504 and the ADA, by forcing them
into a Section 504 Service Agreement.*fn2 Count I is brought by John and
Gail Sutton on their own behalf, Count VI is brought by John and Gail
Sutton on behalf of Danielle Sutton. Defendants argue that the School
District is entitled to summary judgment on Counts I and VI of the
Amended Complaint because the evidence of record does not support a claim
for abuse of process pursuant to either the Section 504 or the ADA. ...